Filed 2/22/18 P. v. Boutelle CA5


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

TROY LANCE BOUTELLE,

Defendant and Appellant.

F073999

(Super. Ct. No. 1468147)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Stanislaus County. Ricardo Cordova, Judge.
Karriem Baker, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Kevin M. Cornwall, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-



Defendant Troy Lance Boutelle was convicted of several robberies and one petty theft he committed in fast food stores. On appeal, he contends: (1) the trial court erred pursuant to Penal Code section 654 by sentencing him to concurrent terms for the robbery and petty theft of two employees of the same store, (2) the trial court erred in calculating his presentence credits, and (3) the record contains clerical errors in the minute order and abstract of judgment that require correction. The People concede the first two issues, but contend we should remand to the trial court for clarification of the third. We order the petty theft sentence stayed, award one more actual day of credit and two more days of conduct credit, and remand to the trial court for clarification of restitution fines. In all other respects, we affirm.
PROCEDURAL SUMMARY
On May 24, 2016, defendant was convicted by jury trial of robbery of an employee of Little Caesars (§ 211; count 2), attempted robbery of an employee of Subway (§§ 211, 664; count 3), petty theft of an employee of Papa Murphy’s (§ 484, subd. (a), a misdemeanor; count 5), robbery of an employee of Papa Murphy’s (§ 211; count 6), and robbery of an employee of Little Caesars (§ 211; count 7). The jury found true an allegation that defendant used a deadly weapon as to count 3 (§ 12022, subd. (b)), and the trial court found true a section 12022.1 out on bail allegation as to all counts.
On June 29, 2016, the trial court sentenced defendant to a total of eight years in prison: the middle term of two years on count 3, plus a one-year term for the section 12022, subdivision (b) enhancement; one consecutive year on count 2; 60 concurrent days in county jail on count 5; one consecutive year on count 6; one consecutive year on count 7; and a consecutive two-year term for the section 12022.1 enhancement. According to the court’s oral pronouncement, the court ordered that defendant pay “[a]ny restitution owing.” The court imposed “the minimum of $300 per year of imprisonment.” The court ordered him to pay, “in addition to actual restitution to all victims, a Restitution Fund fine of $2,400. An identical amount imposed and stayed pending successful completion of … parole or Post-Release Community Supervision.” The court also ordered the following fees and fines on each count: “$40 security, $30 criminal conviction, $38 theft fees.” And finally, the court awarded credit for 906 actual days and 134 days of conduct credit.
The abstract of judgment reflects a $1,500 restitution fine pursuant to section 1202.4, subdivision (b), a matching $1,500 stayed parole revocation fine pursuant to section 1202.45, and a $2,400 victim restitution fine pursuant to section 1202.4, subdivision (f).
FACTS
Only the facts underlying counts 4 and 5 are relevant to the issues on appeal.
On December 29, 2013, defendant entered a Papa Murphy’s store and handed S.I., a female employee, a sign that said, “This is a robbery. Give me the money.” S.I. walked to the back of the store to tell K.T., a male employee, that a man was trying to rob the store. She asked K.T. to come to the front of the store. Defendant walked back to the employee area and told S.I. and two other employees to stand together at the front of the store. K.T. opened the cash register and also retrieved a cash box from the safe. Defendant left with the money. During the incident, S.I. was not worried she was in danger, but K.T. was afraid.
DISCUSSION
I. Section 654
Section 654, subdivision (a) provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” In People v. Jones (2012) 54 Cal.4th 350, the Supreme Court held that multiple convictions based on a single act or omission can be punished only once. (Id. at p. 360.) Specifically, the court decided the defendant could be punished only once for his three convictions of possession of a firearm by a felon, carrying a readily accessible concealed and unregistered firearm, and carrying an unregistered loaded firearm in public. (Id. at pp. 352, 360.)
Section 654 does not bar multiple punishment in two situations: (1) where the defendant engaged in an act of violence against multiple people and (2) where the defendant entertained multiple criminal objectives not merely incidental to each other. (People v. Newman (2015) 238 Cal.App.4th 103, 112.)
The parties agree that defendant did not engage in an act of violence against both S.I. and K.T. at Papa Murphy’s. And they agree that defendant did not appear to entertain multiple criminal objectives; he intended to rob the Papa Murphy’s store, rather than particular employees. We accept the People’s concession that the petty theft sentence must be stayed.
II. Presentence Credits
The People also concede that the trial court erred in its calculation of defendant’s presentence custody credits and that defendant is entitled to one more actual day of credit and two more days of conduct credit. We accept the concession.
III. Restitution Fines
Typically, where the abstract of judgment and the court’s oral pronouncement are at odds, we direct the trial court to amend the abstract of judgment to comport with the sentence orally imposed. (People v. Delgado (2008) 43 Cal.4th 1059, 1070 [when oral pronouncement of judgment conflicts with abstract of judgment, oral pronouncement prevails]; People v. Mitchell (2001) 26 Cal.4th 181, 187 [Court of Appeal may correct errors in abstract of judgment at any time].) Here, however, the oral pronouncement of the restitution fines imposed is unclear. Although we may correct clerical errors at any time, we are not convinced this error is a clerical one. Thus, we will remand to the trial court for clarification of the fines.
DISPOSITION
The 60-day jail sentence on count 5 (Pen. Code, § 484, subd. (a)) is stayed pursuant to Penal Code section 654. Defendant is awarded one more actual day of custody credit for a total of 907 actual days, and two more days of custody credit for a total of 136. The matter is remanded to the trial court for clarification of the restitution fines orally imposed. In all other respects, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting these changes and to forward a certified copy to the appropriate authorities.